Michigan Law Review Volume 85 Issue 5 Issue 5&6 1987 Apocalypse Now? Richard L. Marcus University of Illinois College of Law Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Legal Remedies Commons, Litigation Commons, Military, War, and Peace Commons, and the Torts Commons Recommended Citation Richard L. Marcus, Apocalypse Now?, 85 MICH. L. REV. 1267 (1987). Available at: https://repository.law.umich.edu/mlr/vol85/iss5/41 This Review is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. APOCALYPSE NOW? Richard L. Marcus* AGENT ORANGE ON TRIAL: MAss TOXIC DISASTERS IN THE COURTS. By Peter H. Schuck. Cambridge: The Belknap Press of Harvard University Press. 1986. Pp. ix, 347. $25. Rambo [displaying photo of his Vietnam platoon]: And there's Delmar, right in the back. We had to put him in the back because he is so big. If we didn't, he'd take up the whole picture. Look how big he is. Delmar's Mother: Delmar's gone. Rambo: What time will he be back? Mother: He died. Rambo: What? Mother: Died last summer. Rambo: Died? How? Mother: Cancer. Brought it back from 'Nam. All that orange stuff, they spread it all around. Cut him down to nothing. I could lift him off the sheet. First Blood 1 [C]ertain products have achieved such national notoriety due to their tremendous impact on the consuming public, that the mere mention of their names - Agent Orange, Asbestos, DES, MER/29, Dalkon Shield - conjure images of massive litigation, corporate stonewalling, and in­ frequent yet prevalent, "big money" punitive damage awards. - Judge Spencer Williams2 For more than two decades, the Vietnam war has hung over the American social and political system. From time to time fallout from the war has intruded into the American judicial system as well. Some tried to use the judiciary to interdict military operations in Southeast Asia, but the courts refused to become involved. 3 Similarly unsuccess- * Professor of Law, University of Illinois. B.A. 1969, Pomona College; J.D. 1972, Univer­ sity of California, Berkeley. - Ed. I am indebted to Linda Schoemaker and Nancy Van Winkle for research assistance. 1. Anabasis Investments, N.V. 1981. This is the opening scene in the movie. After leaving Delmar's mother, in a state of turmoil about the news of Delmar's death, Rambo encounters the unfriendly sheriff and drifts into his own apocalypse. 2. In re Northern Dist. of Cal. "Dalkon Shield" l.U.D. Prod. Liab. Litig., 526 F. Supp. 887, 892 (N.D. Cal. 1981), vacated, 693 F.2d 847 (9th Cir. 1982), cert. denied sub nom. A.H. Robins Co. v. ABED, 459 U.S. 1171 (1983). 3. E.g., Massachusetts v. Laird, 400 U.S. 886 (1970) (denying Massachusetts leave to file bill of complaint in Supreme Court to challenge constitutionality of Vietnam War); McArthur v. Clifford, 402 F.2d 58 (4th Cir.) (rejecting petitions for habeas corpus relief filed by reservists ordered to Vietnam who asserted their orders were illegal because there had been no declaration of war), cert. denied, 393 U.S. 1002 (1968); Mora v. McNamara, 387 F.2d 862 (D.C. Cir.) (seek- 1267 1268 Michigan Law Review [Vol. 85:1267 fu1 were governmental attempts to have the courts suppress the Penta­ gon Papers.4 More recently, General William Westmoreland has gone to court to challenge a CBS story that charged him with misleading American political leadership about the actual progress of the war.5 Significant though this litigation was, it has been eclipsed in dimen­ sion by personal injury lawsuits brought by veterans exposed to the herbicide Agent Orange. These cases began slowly in the late 1970s, but by the time the resulting class action approached trial they had mushroomed into a litigation colossus. There never was an in-court confrontation between the veterans and the chemical companies, how­ ever. Instead on May 7, 1984, the ninth anniversary of the withdrawal of the U.S. troops from Vietnam, the class action was settled for $180 million, the largest personal injury settlement in American litigation history. The settlement prompted immediate and substantial attention in the print media, 6 and the Agent Orange problem has since been featured in a made-for-TV movie. 7 But it was never legally established that Agent Orange has actually harmed anyone, since the same ail­ ments were found in people not exposed to the herbicide. Indeed, the claims of veterans who opted out of the class action were ultimately rejected for lack of proof of causation. Obviously the story of the Agent Orange litigation deserved to be told, and Professor Schuck's book does an excellent job of recounting the many twists and turns it took from its modest beginnings to its celebrated conclusion. Unlike the tendentious recent books on the as- ing declaratory judgment that military activity in Vietnam was "illegal"), cert. denied, 389 U.S. 934 (1967). The court did grant certiorari in other cases involving fallout from the war. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974) (association of Reserve members lacks standing to challenge membership in Armed Forces Reserve of members of Con· gress); United States v. O'Brien, 391 U.S. 367 (1968) (prosecution for burning draft card as part of antiwar protest not forbidden by first amendment). 4. New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam). 5. For a description ofthls litigation, see R. ADLER, RECKLESS DISREGARD (1986); see also Herbert v. Lando, 441 U.S. 153 (1979) (officer who reported atrocities by American troops in Vietnam brought defamation suit against CBS for questioning the accuracy of his reports). 6. The New York Times ran a prominent front page story on the settlement, backed up with a spread of subsidiary stories on inside pages. See Blumenthal, Veterans Accept $180 Million Pact on Agent Orange, N.Y. Times, May 8, 1984, at l, col. 5. The Times later expressed editorial doubt over the propriety of such a large settlement absent proof Agent Orange harmed the class. See Orangemail: Why It Got Paid, N.Y. Times, Mar. 8, 1985, at A34, col. 1. Both Time and Newsweek ran full page stories on the settlement. See Lamar, Winning Peace with Honor, TIME, May 21, 1984, at 39; Press, A Fast Deal on Agent Orange, NEWSWEEK, May 21, 1984, at 56. 7. Unnatural Causes (NBC television broadcast, Nov. 10, 1986) (starring John Ritter and Alfre Woodard). The New York Times explained that the film "presents the case for the Vietnam veterans who are demanding redress for their exposure to the herbicide Agent Orange. • • . This is drama with a point of view, and the producers make the most of the opportunity, leaving no doubt as to who their heroes and villains are." O'Conner, NBC Film on Agent Orange Dispute, N.Y. Times, Nov. 10, 1986, at C23, col. 4. For another example of general media attention to the effects of Agent Orange, see Distelheim, There's a Time Bomb Ticking Inside Me, FAMILY CIRCLE, Oct. 15, 1985, at 46, detailing health problems that a former flight attendant who flew in Vietnam attributes to Agent Orange. April-May 1987] Apocalypse Now? 1269 bestos and Dalkon Shield litigation, 8 Professor Schuck's study is not designed to expose corporate evil in America. It is instead a thought­ ful evaluation of the way in which the Agent Orange problem was processed by the courts, written with explanations of legal doctrine that should provide laymen with an unparalleled inside glimpse of the details of contemporary complex litigation. For the professional reader, Professor Schuck treats the case as a "harbinger of mass toxic tort cases yet to come" (p. 13) and therefore seeks to use the Agent Orange story as a springboard for apocalyptic visions of litigation as a social response to the problem of exposure to toxics. While laudable, this effort seems somewhat misdirected. Schuck draws generally on the massive literature criticizing the tort system as a whole, but this case is extraordinary in ways that make it a poor vehicle for such criticisms. Indeed, as the flawed studies of the asbestos and Dalkon Shield litigations make clear, the tort system seems a necessary tool even in mass exposure cases. Despite Professor Schuck's inclinations, it seems to this reader that his story raises more significant questions about procedural matters. Although some commentators express enthusiasm for class action in mass tort cases,9 the difficulties encountered by plaintiffs' counsel in the Agent Orange litigation provide reason for caution in use of the device. Much more significantly, the book provides a detailed expose 8. On asbestos, see P. BRODEUR, OUTRAGEOUS MISCONDUCT: THE AsBESTOS INDUSTRY ON TRIAL (1985). As Professor Schuck rightly observes, this book is "tendentious." P. 303 n.7. On the Dalkon Shield, see S. ENGELMAYER & R. WAGMAN, LORD'S JUSTICE: ONE JUDGE'S BATILE TO EXPOSE THE DEADLY DALKON SHIELD I.U.D. (1985). This book has been properly denounced for its uncritical acceptance of highly questionable crusading by Judge Miles Lord to expose wrongdoing by the A.H. Robins Co. See Book Note, 99 HARV. L. REv. 875 (1986). 9. For example, in 1984 Professor Charles Alan Wright argued as follows in support of class certification in In re School Asbestos Litig., 594 F.